PEDDERS & BECKING

[2020] FCCA 2641

FEDERAL CIRCUIT COURT OF AUSTRALIA

PEDDERS & BECKING [2020] FCCA 2641

Catchwords:
FAMILY LAW – Ruling on costs application.

Legislation:

Family Law Act 1975 (Cth), s.117

Applicant: MR PEDDERS

Respondent: MS BECKING

File Number: DGC 1035 of 2014

Judgment of: Judge Burchardt

Hearing date: 31 August 2020

Date of Last Submission: 14 September 2020

Delivered at: Dandenong

Delivered on: 23 September 2020

REPRESENTATION

Counsel for the Applicant: Mr Lovering

Solicitors for the Applicant: Leonard and Associates

Counsel for the Respondent: Ms Morkos

Solicitors for the Respondent: Taylor Family Law

ORDERS

1. The applicant father pay the respondent mother’s costs fixed at $5,000.

IT IS NOTED that publication of this judgment under the pseudonym Pedders & Becking is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1035 of 2014

MR PEDDERS

Applicant

And

MS BECKING

Respondent

REASONS FOR JUDGMENT

1. The mother seeks that the father pay her costs of the most recent tranche of litigation between the parties.  The father naturally resists that application.

2. Relevantly, on 5 April 2018 orders were made by consent, at a time when both parties were legally represented, in respect to the child X born in 2011.  The parties had been in litigation about X’s best interests for a very long period of time.  The orders required X to live with the mother, who was granted sole parental responsibility, and the father’s time was limited essentially to cards, letters and presents.

3. The Court also noted at annotation A that the mother had stated a willingness to reconsider the question of X spending time with the father provided X’s anxieties were under control and subject to the father demonstrating that he had undergone rehabilitation for his drug and alcohol issues.

4. On 16 July 2020 the father filed a further application.  He sought various orders designed to re-establish a relationship between him and X, whom he had not seen since 2018.  He also sought a parentage order.  That test was conducted and it became apparent that the child is indeed his.  To make such an application some six years after separation, it is immediately apparent, is  somewhat strange

5. The father filed a number subpoenas, including one to the Town B Regional Health Service which, perhaps slightly unusually, filed not only a notice of objection but submissions and an affidavit in support of that objection.  It is sufficient to note that for reasons that I gave at the time I set aside the subpoena on 31 August 2020 when the matter was before me.

6. Likewise, for reasons once again delivered orally on the day, I dismissed the father’s application.  I made orders for timetabling of submissions as to costs as pressure of business on the day made it impossible to hear a costs argument at that time.

7. Both parties filed helpful written submissions and I have, of course, regard to those written submissions, but I propose to structure these reasons essentially in terms of section 117 of the Family Law Act 1995 (Cth).

8. The general rule, of course, is that each party bears their own costs (section 117(1)).

9. The Court, however, may, if it is of the opinion that there are circumstances that justifies in doing so and subject relevantly to subsection (2A), make such orders as to costs as the Court considers just (section 117(2)).

10. The first matter the Court is obliged to consider are the financial circumstances of each of the parties.  The mother has the fulltime care and responsibility for the development and wellbeing of X, who is after all not yet nine years old.  According to her written submissions she has income of some $1,666 per fortnight and the father pays $471 in child support each month.  The mother has a mortgage to pay of some $108,000 but has an offset account with some $57,000 in it in a mortgage redraw facility.  She further has another bank account with some $20,000, which are also in an offset account, that have been saved up by her to buy a new car.   It is apparent, therefore, that her expenses do not outstrip her income or she would not have been able to save $20,000.  There is nothing in the written submissions to indicate how long it has taken her to amass this sum.

11. The father has deposed in an affidavit filed in July of this year that he has a successful concreting business which has been in operation for almost 18 years and that he is “in a very secure financial situation”, having developed a reasonable real estate portfolio, and owing (sic) a number of work, motor and leisure vehicles.  His income has been assessed by the child support agency in April 2020 as being $139,670.  The mother’s written submissions assert at paragraph 5 that on 16 June 2020 the father sold a real property (sic) at C Street, Town D for $400,000, and the written submissions in response have not taken issue with that assertion.  It is asserted without any detail in the fathers’ written submissions that the father’s liabilities are in excess of $1 million and that may well be so, but that assertion must be set against his affidavit assertion that he is in an extremely secure financial position. 

12. The next matter to consider is legal aid and it is plainly irrelevant in this instance.  Both parties have self-funded.

13. So far as the conduct of the parties in relation to the proceedings is concerned, there is nothing in my view in the conduct of either party that calls for comment. 

14. The father complains in his written submissions, and indeed in his affidavit material, of alleged failures on the mother’s part properly to comply with the extant orders in terms of notifications of illness and the like.  He also asserts that the need for the proceedings was buttressed by his ongoing underlying concerns as to parentage.  The latter, in my view, is simply a makeweight tagged on.  To be putting the child’s parentage in issue in this way given her age would only be relevant presumably to an application to cease child support payments.  Since the father’s position in his material is generally to the effect that he wishes to have an ongoing relationship with the child, one might wonder whether the parentage application was really made in good faith.  To the extent that the father complains of noncompliance by the mother, the reality is that the mother has denied all noncompliance asserted against her in ringing terms.  The matter has not proceeded to final adjudication and accordingly it is not possible to give this aspect of the matter any weight.

15. The final relevant consideration is, of course, that the father has been wholly unsuccessful in the proceeding.  I have already given my reasons for that on the day.  In essence, what I decided was that in the face of the child’s ongoing difficulties as evidenced in the affidavit material the father’s application was, so to speak, putting the cart before the horse.  Counsel submitted that he had steps underway to address the issues noted in the notation in 2018 but I accepted the submission of counsel for the mother that this was the wrong way around.  He has to address those matters first and that he would then, if he does so, be in a positon properly to make an application to the Court.  The father’s failure to address the various matters that the orders in 2018 required him to address, particularly in circumstances where he was legally represented throughout, stand vividly against him.  He has indeed been entirely unsuccessfully in the proceedings.

16. Although the father’s written submissions appear to put in issue, albeit in a somewhat oblique way, his capacity to pay any costs order, as earlier indicated I am wholly unpersuaded that he is impecunious.  His own affidavit material is quite to the contrary effect.  Furthermore, even if he were impecunious, it is well established that mere lack of capacity to pay a costs order is no bar to a costs order being made in an appropriate case.  This is a well-established proposition for which it is not necessary to site authority.

17. Taking into consideration the father’s complete lack of success in the proceeding and the somewhat misconceived basis upon which he pursued it, and bearing in mind his healthy financial situation and the mother’s strained one, I think it is entirely appropriate that he pay costs.  I note that the mother does have some financial resources and I note that it would seem that her expenditure does not exceed her income.  Nonetheless, she is the one living on statutory benefits.

18. In all these relevant circumstances it is plainly appropriate that the father pay the mother’s costs. 

19. The next issue is the quantum to be awarded.  It should be noted that the father’s complaints about the lack of mediation are unsustainable.  The history of this matter would have made it very plain to any informed observer there was never any prospect that the matter would resolve by mediation.  Anyone who has read Ms E’s earlier report (which was some ways extremely critical of the mother) would have known that a mediation was devoid of hope.

20. I note that the scale fee for opposing an application which includes interim orders is approximately $2,800 plus the relevant daily hearing fee.  This matter will, in my view, attract a daily hearing fee for a half day, which inclusive of advocacy loading, comes to approximately $1,800 on the Court’s scale.  That is a total of $4,600.  There would have been additional work involved in opposing the objection to a subpoena.  In all the circumstances it seems to me that the reasonable figure that the father should pay is a total of $5,000.  I will order that he do so.

21. The mother’s written submissions do not in terms seek indemnity costs.  While the husband has undoubtedly been ultimately unsuccessful, his conduct of this case, notwithstanding his somewhat unappealing application for parentage testing, does not go so far out of the ordinary range or possess some special other quality as to make an indemnity costs order appropriate.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 23 September 2020